Mohamed Kosia and Others v Mohamed Kebe (MAG APP 26/2024) [2026] (6 October 2026)

IN THE APPELLATE DIVISION OF THE HIGH COURT OF SIERRA LEONE (APPELLATE JURISDICTION)

BETWEEN: MOHAMED KOSIA, MR CHANDS, MR CHARLES, MADAM MUMY KAMARA, MR KOLIFA TAYLOR KAMARA, MR MOHAMED BANGURA, MADAM NAMINA AND AMINATA KABIA — Appellants FREETOWN CITY COUNCIL — Applicant / interested person AND MOHAMED KEBE — Respondent

Counsel: T. Kellie for the applicant interested person. M.H. Bangura for the respondent.

Ruling of the Honourable Mr Justice Abdul Rahman Mansaray J, 6 October 2026. MAG. APP 26/2024.

The application

1. This is a notice of motion dated 17 February 2026 by Freetown City Council, seeking leave to be added as a party to the appeal. FCC contends that the appellants occupy 69B Kissy Bye Pass Road, Kissy Samuels, Freetown under tenancies allegedly granted by FCC, and that FCC is the landlord entitled to the immediate reversion. FCC says its presence is necessary to determine the issues in the appeal.

2. The application is supported by the affidavit of Tamba Kellie and opposed by the affidavit of Mohamed Hassan Bangura, counsel for the respondent. FCC filed an affidavit in reply sworn by Tamba Gbewa Abu. The court concluded that the application is misconceived and ought to be refused.

The background

3. The respondent commenced proceedings under the Summary Ejectment Ordinance, Cap. 49, against the appellants before the Magistrate Court. The matter went to a full hearing. Both sides led evidence. Witnesses testified. Documents were tendered. A locus inspection was conducted. The court delivered judgment on 12 November 2024 in favour of the respondent.

4. The appellants lodged a notice of appeal on 19 November 2024. FCC was not a plaintiff, defendant, intervenor, interested party or applicant before the Magistrate's Court. FCC now seeks, after judgment and after the appeal was entered, to be joined. FCC's case is that the appellants are its tenants, that it has a reversionary interest, and that the appeal may affect that interest.

The issues for determination

5. The application raises four questions: whether this court, sitting on appeal from the Magistrate Court, can join a non-party after judgment below; whether Order 18 of the High Court Rules 2007 applies to such appeals; whether FCC has standing; and whether the interests of justice require joinder.

Nature of an appeal

6. An appeal is not ordinarily a fresh action, and it is not an opportunity for persons who did not participate below to enter after judgment. The function of an appellate court is to review, affirm, vary or reverse the decision on the record created below.

7. Lord Herschell observed in Attorney-General v Sillem (1864) 10 HLC 704 that the jurisdiction of an appellate tribunal is generally confined to reviewing the correctness of the judgment appealed against. The Privy Council in Attorney General of Trinidad and Tobago v Matthews [2011] UKPC 38 reaffirmed that an appeal is a continuation of existing proceedings, not the commencement of new litigation.

8. This court is not deciding who ought originally to have been sued, and it is not exercising original jurisdiction over proprietary rights between FCC and the respondent. The question is whether the magistrate's decision was right or wrong on the evidence and issues before her Worship.

Whether Order 18 applies

9. FCC relies on Order 18 and the principles of joinder. That reliance is misplaced. Order 18 is designed primarily for proceedings in the High Court exercising original jurisdiction.

10. The substantive action has already been tried and determined. The proceedings before the Magistrate Court are no longer pending. Joinder cannot simply be transplanted into an appeal as though the matter were still awaiting trial. The question before this court is appellate, not original.

Whether FCC was a party below

11. It is common ground that FCC was not a party below. FCC's own affidavit admits this and relies upon it. The appeal exists because the parties before the magistrate invoked the appellate process. An appeal presupposes a judgment affecting the rights of the parties in the court below.

12. No judgment was entered against FCC. No relief was granted against FCC. No order required FCC to do or refrain from doing anything. FCC has nothing from which to appeal. FCC seeks not to prosecute an appeal but to enter an appeal already instituted by others.

Whether FCC's interest was already before the trial court

13. The contention FCC now wishes to advance was canvassed at trial. Witnesses associated with FCC testified about the alleged tenancy between FCC and the appellants. The magistrate considered that evidence and made findings upon it.

14. According to the affidavit, the magistrate concluded that the documents relied upon by the appellants and FCC did not establish title or a legally effective tenancy capable of displacing the respondent's claim. Whether those conclusions were right or wrong is for the substantive appeal.

15. FCC's position was already before the trial court through witnesses and documents relied upon by the defence. This is not a case in which an entirely unheard claim would be excluded. The issue was already litigated.

Whether FCC can relitigate through joinder

16. FCC claims superior title and a reversionary interest. Appellate procedure cannot be used to introduce a fresh litigant in order to reopen factual disputes already adjudicated below. Joinder would raise questions about further evidence, new grounds, additional witnesses and documents not part of the record.

17. To permit that course would turn the appeal into a fresh trial involving a new party. That is not the function of an appellate court.

Adequate representation

18. FCC has not shown that its position is unrepresented. The appellants' defence below was founded substantially on the assertion that they were tenants of FCC and not of the respondent. The respondent points out that the grounds of appeal already encompass every material contention which FCC seeks to raise.

19. Even assuming FCC has an interest, that interest is already being advanced through the appellants. The court sees no practical gap in representation.

Delay

20. Judgment was delivered on 12 November 2024. The appeal was entered shortly thereafter. FCC did not file its application until February 2026. The affidavit offers no satisfactory explanation for the delay. A successful litigant is entitled to expect that litigation will proceed toward conclusion.

21. Where a person had knowledge of proceedings and an opportunity to protect its interests but chose not to intervene, the court must be cautious before permitting participation after judgment.

Interests of justice

22. FCC may genuinely believe it has rights in the property. The question is not whether FCC has rights, but whether FCC should be added to this appeal. Nothing in this ruling prevents FCC from pursuing any remedy available to it in separate proceedings.

23. FCC cannot transform an appeal into a fresh forum for rights that were not the subject of independent proceedings brought by it. The interests of justice favour finality, respect for the appellate process, and the distinction between original and appellate jurisdiction.

The findings

24. FCC was not a party before the Magistrate Court. No judgment or order was made against FCC. The issues FCC seeks to advance were already canvassed through the defence case. Order 18 cannot be invoked to convert an appeal into a fresh trial involving a new litigant. FCC has not established a legal basis for being added at the appellate stage. The interests of justice favour determination of the appeal between the parties who litigated below.

The orders

25. The court ordered:

1. The notice of motion filed by Freetown City Council seeking to be joined as an applicant interested person in this appeal is refused and struck out.

2. The appeal shall proceed between the existing parties.

3. Costs of this application are awarded to the respondent, to be taxed if not agreed.

Honourable Mr Justice Abdul Rahman Mansaray J.